SHYAM SUNDER MISRA Vs. LABOUR COURT LUCKNOW

JUDGEMENT

(1.) The award dated 31st July, 1985 passed by the learned Labour Court, U. P. at Lucknow in Adjudication Case No. 32 of 1984 has since been challenged in this writ petition, Mr. V. K. Srivastava, learned counsel for the petitioner contends that the learned Labour Court had come to a finding that there was no enquiry at all and, therefore, the finding of the purported enquiry cannot be sustained. Thereafter, he had held that the domestic enquiry was not fair and proper. It is also recorded that after the said order, the employer did not propose to adduce any further evidence. By reason thereof, the order of removal from service inflicted on the petitioner by an order dated 31st January, 1978 was set aside. But the learned Labour Court refused to grant back wages on the ground that the petitioner's conduct and work were far from satisfactory, on the basis of the statement made in the rejoinder-affidavit. According to him though the jurisdiction to grant back wages is a discretionary jurisdiction yet it has to be exercised judicially with an objective view. More in this case, there was no material on record on the basis of which such discretion could be exercised against the workman. The learned Labour Court could not rely on the rejoinder-affidavit. It is only a pleading without being supported by any material, A pleading has to be supported by materials produced in evidence either oral or documentary or both. In the present case after the enquiry 'was set aside, there was nothing and no further evidence having been adduced, there was nothing on record in the form of evidence either oral or documentary on the basis of which the learned Labour Court could have come to such a conclusion while exercising such discretion. Therefore, he prays that the part of the award by which back wages was refused, should be set aside.

(2.) Mr. Prabhakar Tewari, holding brief of Mr. S. K. Kalia, learned counsel for the respondent submits that it is the discretion of the Labour Court either to grant back wages or to determine what amount should be granted as back wages. Such discretion is to be exercised on the basis of the materials on record. According to him pleading is one of such material which can be taken into account since statements made in the rejoinder-affidavit remained uncontroverted. He also points out from paragraph 4 of the award that the learned Labour Court had taken note of the situation as to the performance of the workman. He contends that the workman had once earlier been terminated and, therefore, again he was reappolnted. But his work was unsatisfactory and despite several instructions, he did not improve and that the workman was guilty of many irregularities and that he was only given temporary appointment and his term was extended from time to time. Therefore, having regard to such a situation, it was Justified on the part of the Labour Court to refuse back wages in the award. On these grounds, he prays that this writ petition should be dismissed.

(3.) I have heard both the learned counsel at length.